Opinion
Case No. 2:99CV0313C
February 25, 2000
ORDER
This matter comes before the court on the parties' Stipulation to Transfer Venue to the Central District of California, and accompanying proposed Order. The parties, in agreement, ask the court (1) to transfer venue in this case to California pursuant to 28 U.S.C. § 1404 and (2) to allow plaintiff to file a second amended complaint adding Sally Yvonne Roth as defendant.
A. Change of Venue
28 U.S.C. § 1404(a) allows change of venue "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." (emphasis added). Given the last phrase of the statute, a stipulation alone does not give a transferor court the ability to transfer. Indeed, before transferring under this statute, the transferor court should be completely satisfied as to its power to transfer regardless of a stipulation between the parties. Hoffman v. Blaski, 363 U.S. 335 (1960); see also Chrysler Credit Corporation v. County Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991) (a court cannot transfer a suit to a court where personal jurisdiction does not exist over the defendants originally, even if the defendants later consent to suit); Morris v. Peterson, 759 F.2d 809, 812 (10th Cir. 1985) (same). In Hoffman, the Supreme Court held that if the transferee court was an alternative forum available to the plaintiff in the first instance, then that court is a district where the action "might have been brought." Hoffman, 363 U.S. at 340; See also Philip Carey Manufacturing Company v. Taylor, 286 F.2d 782, 784 (6th Cir. 1961). This interpretation would prohibit a transfer of a case where plaintiff could not have sued defendant in the transferee court at the time it commenced its action. Therefore, before entering an order transferring this case to California, this court must find: (1) the plaintiffs had a right to bring their action in that district and (2) the transfer will serve the convenience of the parties and witnesses, in the interest of justice.
The agreement satisfies the second prong by "stipulat[ing] and agree[ing] that venue [should] be changed . . . for the convenience of parties and witnesses." Stipulation to Transfer Venue to the Central District of California at 1. Furthermore, the various pleading of the parties indicate that most of the witness, evidence, and actions involved in the lawsuit are now, and have always been, in California. See, e.g., Defendant's Memorandum in Support of Defendant's Motion to Dismiss Under Rule 12(B)(2) and 12(B)(3) for Lack of Jurisdiction and Venue or For Transfer Under 28 U.S.C. § 1404(A), dated October 4, 1999 ("Defendants' Memorandum").
The Memorandum appears to be mistitled "Plaintiff's Memorandum. . . ." This order refers to it as Defendants' Memorandum.
The first prong is somewhat more difficult. The fact that both parties stipulate now that they are willing to litigate in California does not necessarily mean that suit could have been brought in California in the first instance. See, e.g., Silver v. Goodman, 234 F. Supp. 415 (D. Conn. 1964) (despite stipulation, transferor court could not transfer to New York under § 1404(a) because suit could not have been brought there originally). The phrase "where it might have been brought" cannot be interpreted to mean "where it may now be rebrought, with defendants' consent." Hoffman, 363 U.S. at 342-43. Under Hoffman, before transferring, the transferor court must be satisfied that the case could have been originally brought in the transferee forum.
A review of earlier pleadings indicates that plaintiff could have brought the case in California initially. All of the defendants, including Sally Roth, are citizens of California and have been California residents since the beginning of the case. See Complaint at 1-2, dated April 30, 1999; Defendants' Memorandum at 3. The plaintiff is and has been a citizen of Utah since the beginning of the case. See Complaint at 1; Memorandum in Opposition to Motion to Dismiss or Transfer at 1. There is no indication that any of the parties have moved or changed their residences since the inception of the lawsuit. Had plaintiff initially brought suit in the Central District of California, that court would have had subject matter jurisdiction based on diversity. That court would have also had personal jurisdiction over all defendants in the Central District of California under that state's long arm statute. See Cal. Code § 410.10 (1973). Furthermore, venue would have been proper in the Central District of California under 28 U.S.C. § 1391(a). The Central District of California, therefore, is a forum where this case could have been originally brought.
The California State Long Arm Statute says: "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." Cal. Code § 410.10 (1973).
28 U.S.C. § 1391(a) holds, in part, that venue is proper where "a substantial part of the events or omissions giving rise to the claims occurred, or a substnatial part of properrty that is the subject of the action is situated. . . ." As noted above, most of the witnesses, evidence, and events surrounding this lawsuit are now, and have always been, in the Central District of California.
Since the Central District of California is a forum where the case "might have been brought," 28 U.S.C. § 1404(a) is satisfied. The motion to transfer venue is, therefore, GRANTED.
B. Addition of Party
The agreement of the parties also seeks to add Sally Yvonne Roth as a defendant. According to Fed.R.Civ.P. 21, "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." In a letter attached to the parties' stipulation, Ms. Roth gives signed written consent to her addition. Although the letter is somewhat unclear, it appears that Ms. Roth has always considered herself part of the lawsuit. Ms. Roth is a citizen of California, and the parties stipulate that personal jurisdiction and venue over Ms. Roth are proper in the Central District of California. A review of the various pleadings indicate that Ms. Roth is clearly connected with the activities involved in the lawsuit. Under Fed.R.Civ.P. 21, the motion to add Sally Yvonne Roth as defendant is GRANTED.
In relevant part, her letter reads, "It is my understanding that although I am named in Ed Roth's claim against my sons and myself, he wishes to include me on the title of that claim as a stipulation to move that claim to California. Please regard this notice as my agreement to accept Mr. Roth's wish. You can allow Ed Roth's claim to include my name on the title." See Stipulation to Transfer Venue to the Central District of California, dated February 16, 2000.
SO ORDERED.