Opinion
No. C-11-1479 EMC.
August 24, 2011
ORDER GRANTING DEFENDANT'S MOTION FOR INTRADISTRICT VENUE TRANSFER (Docket No. 21)
Defendant Phoenix Technologies ("Phoenix") has filed a motion for intradistrict venue transfer to the San Jose Division of this District. Docket No. 21. Defendant argues that this action arises in the San Jose Division and that a transfer would best serve the convenience of the parties and witnesses and the interests of justice.
Local Rule 3-2(c) provides that "[a] civil action arises in the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated." In this case, Plaintiff resides in Memphis, TN, and Defendant is based in Milpitas, CA, in the County of Santa Clara, within the district of San Jose pursuant to LR 3-2(e). Plaintiff's complaint alleges that Phoenix's hardware and software contain design defects that left her vulnerable to computer hackers. Since Plaintiff's allegations concern technology Defendant makes in Milpitas, Mot. at 4, it would appear that her claims arose in the San Jose Division and should have been assigned there in the first instance.
This action does not fit into any of the categories under LR 3-2(c) for district-wide assignment. See, e.g., Baltazar v. Apple Inc., No. 10-3231 JSW, 2010 WL 4392740, at *1 (N.D. Cal. Oct. 29, 2010) (transferring action against Apple to San Jose where complaint alleged breach of warranty, false advertising, and defects such as overheating of an iPad).
In the event that an action is assigned to the wrong division or a party desires to move an action, Rule 3-2(h) and 28 U.S.C. § 1404(a) allow for transfer of an action if it serves the interests of justice and the convenience of the parties and witnesses. Defendant argues that while San Francisco has no apparent connection to any of the evidence or parties, Defendant's principal place of business is in the San Jose Division, along with its necessary witnesses and evidence. Litigating in San Francisco would simply add to Defendant's costs of litigation. Similar factors have been sufficient for intradistrict venue transfer in other cases, especially where the transfer would have no apparent effect on a nonresident plaintiff as in this case. See, e.g., Rivera v. Hewlett Packard Corp., No. C 03-0939, 2003 WL 24029472, at *1 (N.D. Cal. Apr. 22, 2003) (transferring action from San Francisco to San Jose because witnesses and evidence were located there, and there was no inconvenience to the plaintiff); Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) ("[F]actors include the "relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.").
Moreover, in this case, Plaintiff has filed no opposition to the motion, which could be construed as consent to granting the motion. See Wiley v. Macy's, No. C 10-1188, 2010 WL 2636029, at *1 (N.D. Cal. June 30, 2010) ("The failure to file an opposition to a motion to dismiss in a manner consistent with the Court's rules is grounds for granting the motion.") (citing Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995)). Even without lending any weight to Plaintiff's failure to file an opposition, however, the Court cannot discern any factors weighing against Defendant's motion.
Accordingly, having considered the parties' submissions, the Court deems the matter suitable for decision on the papers and hereby orders as follows:
Pursuant to Civil Local Rule 3-2(h) and 28 U.S.C. § 1404(a), the Court orders that this action be transferred from this Division of the Northern District of California to the San Jose Division. The case arises in the San Jose Division and a transfer will best serve the interests of justice and the convenience of the parties and witnesses.
This disposes of Docket No. 21.
IT IS SO ORDERED.