Opinion
No. C-01-1202 PJH
November 9, 2001
ORDER TRANSFERRING CASE TO DISTRICT OF ARIZONA
Before the court are two motions brought by defendants Catholic Healthcare West, et al. The first is a motion to transfer for convenience to the District of Arizona and the second is a motion to dismiss for failure to state a claim and for failure to plead with particularity. Both motions have been fully briefed by the parties and further argument on these matters is not necessary. Accordingly, the November 14, 2001 hearing previously set for these motions is hereby VACATED. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby rules as follows.
A. Motion to Transfer.
Relators have filed this qui tam complaint on behalf of the United States, alleging that defendants made false and misleading statements in a grant application relating to a research program conducted entirely within the State of Arizona. Defendants now move under 28 U.S.C. § 1404 (a) for a transfer for convenience to the District of Arizona.
"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). There is no established test to determine whether a court should grant a motion to transfer; a court must consider several different "case-specific factors." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). Included among those factors, not all of which will be relevant in any particular case, are:
(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiffs choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiffs 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 v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). The party bringing the motion to transfer has the burden of showing a "clear balance of inconveniences" against it if the action remains in the original venue. E.J. Gallo Winery v. F. P.S.p.A., 899 F. Supp. 465, 466 (E.D. Cal. 1994).
In this case, almost every relevant factor weighs heavily in favor of transferring the action. It is undisputed that the research program was conducted entirely in the State of Arizona, and that all potential witnesses and the majority of all relevant documents relating to the research project and the grant application are located in Arizona. While one of the named defendants, Catholic Healthcare West ("CHW"), is a California non-profit corporation, defendants claim (and relators do not refute) that CHW "had no role or involvement in the preparation or submission of the grant application and its name does not appear anywhere on the application."
Additionally, three factors in this case combine to lessen the deference traditionally accorded the plaintiffs' choice of forum: (1) relator Haight is a resident of Arizona; (2) the United States, rather than relators, is the real party in interest; and (3) the operative facts supporting the lawsuit have no connection to the Northern District of California. Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1091 (9th Cir. 1998) (choice of forum entitled to less deference when it is not place of plaintiff's residence); Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (plaintiffs choice is given less weight when plaintiff brings a derivative suit or represents a class and where operative facts have not occurred within the forum).
The opposition states that "a relator" resides in the Northern District. Relators do not identify this person or provide any evidentiary support for the claim. However, even assuming that a single relator lives in this district, the court's analysis is unchanged.
In opposing the motion to transfer, relators primarily rely on the argument that the only attorney they were able to find who was willing to take their case is a resident of Berkeley, California. That is not sufficient. Relators concede that "convenience of counsel is generally not a factor" but argue that the "interests of justice" and "unique circumstances of this case" render it relevant. Presumably, relators are referring to the difficulty originally experienced in retaining counsel. But counsel has now been retained and the District of Arizona provides a procedure for out of state counsel to practice pro hac vice.
In sum, because this case could have originally been properly brought in the District of Arizona, and because all of the relevant factors weigh heavily in favor of transferring the case to that District, defendants' motion to transfer is GRANTED. It is hereby ordered that the instant action be TRANSFERRED to the District of Arizona. The Clerk of the Court is directed to transmit the file in this case to the Clerk of the District of Arizona.
Because the court transfers the action to the District of Arizona, the court does not reach the motion to dismiss for failure to state a claim and for failure to plead with particularity. Instead, in the interest of conserving judicial resources, if the defendants wish to refile their motion, the court in the District of Arizona may take up the motion. This court does not wish to shape the pleadings of an action that will be heard in another District.
IT IS SO ORDERED.