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Rogers v. United States

United States District Court, D. Arizona

December 10, 2015

Jestin Dale Rogers, Plaintiff,
United States of America, Defendant.

Honorable John Z. Boyle United States Magistrate Judge

Pending before the Court is Defendant’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a). (Doc. 6.) For the reasons below, the Court will grant Defendant’s Motion.

I. Background

Plaintiff, proceeding pro se, asserts that on August 17, 2014, Defendant’s employee, Sergeant Terry Michael Orazi, returned to his home in Clarksville, Tennessee. (Doc. 1 ¶ 14.) At that time, Sergeant Orazi’s home was occupied by two other Army soldiers, Rachel L. Rogers and Sergeant Joshua Gaither, as well as Plaintiff’s two young sons. (Id. ¶ 15.) Sergeant Orazi had been at the firing range prior to returning home, and he brought a duffle bag filled with firearms into the home. (Id. ¶ 17.) At that time, Ms. Rogers and Sergeant Gaither were in the bedroom together in the second level of the home, and Eldin J. Rogers, the son of Plaintiff and Ms. Rogers, was in his bedroom. (Id. ¶¶ 18-19.)

Plaintiff alleges that after Sergeant Orazi returned to the home, he and Eldin Rogers interacted for 20-30 minutes, during which Sergeant Orazi allowed Eldin Rogers to “help him load bullets into firearm magazines.” (Id. ¶ 22.) Plaintiff claims that Sergeant Orazi then placed a loaded 9mm Glock on the coffee table near where Eldin Rogers was standing. (Id. ¶ 24.) Sergeant Orazi turned his back and the gun fired, shooting Eldin Rogers in the chest and destroying his “liver and a kidney.” (Id. ¶¶ 26-27.) Emergency units were dispatched and Eldin Rogers was taken to Vanderbilt Hospital in Nashville, Tennessee. (Id. ¶ 29.) Eldin Rogers was pronounced dead at 7:35 PM on that same day. (Id. ¶ 30.)

Plaintiff asserts that Sergeant Orazi was acting within the course and scope of his employment with Defendant at the time of the incident because “he was in direct violation of military regulations living with other military members off base, which constitutes a form of fraternization.” (Id. ¶ 13.) Plaintiff further alleges that Sergeant Orazi was held in confinement at Fort Campbell immediately after the incident, and Defendant punished Sergeant Orazi, Ms. Rogers, and Sergeant Gaither “at the military level.” (Id. ¶¶ 31-32.)

On August 12, 2015, Plaintiff, an Arizona resident, filed his Complaint in the District of Arizona asserting claims for negligence and wrongful death against the United States pursuant to the Federal Torts Claims Act, 28 U.S.C. § 2671, et seq. (FTCA). (Id.) On October 16, 2015, Defendant filed an Answer to the Complaint and a Motion to Transfer Venue pursuant to 28 U.S.C. § 1404(a). (Doc. 6.) Plaintiff filed a Response in opposition to the Motion on October 23, 2015. (Doc. 10.) On October 27, 2015, Defendant filed a Reply. (Doc. 11.)

II. Legal Standard

Pursuant to 28 U.S.C. § 1404(a), a district court may transfer a civil action to any other district or division where the action might have been brought “[f]or the convenience of parties and witnesses, in the interest of justice[.]” The change of venue statute was enacted to “prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (citation and internal quotation marks omitted).

“When determining whether a transfer is proper, a court must employ a two-step analysis. A court must first consider the threshold question of whether the case could have been brought in the forum to which the moving party seeks to transfer the case.” Park v. Dole Fresh Vegetables, Inc., 964 F.Supp.2d 1088, 1093 (N.D. Cal. 2013). “In order that the case ‘might have been brought’ in the proposed transferee district, the court there must have subject matter jurisdiction and proper venue, and the defendant must be amenable to service of process issued by that court.” Kachal, Inc. v. Menzie, 738 F.Supp. 371, 372-73 (D. Nev. 1990). An FTCA action “may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C. § 1402(b).

Here, there is no dispute that the complained of conduct occurred in or near Montgomery County, in Clarksville, Tennessee. (Doc. 1 ¶ 2; Doc. 6 at 1-2.) Accordingly, the Middle District of Tennessee is a district where the action might have been brought.[1]

Second, the Court must consider “whether the transferee district is a more suitable choice of venue based upon the convenience of the parties and witnesses and the interests of justice.” Airbus DS Optronics v. Nivisys LLC, No. CV-14-02399-PHX-JAT, 2015 WL 3439143, *2 (D. Ariz. May 28, 2015); Park, 964 F.Supp.2d at 1093. The Ninth Circuit Court has identified the following factors, in addition to the convenience of the parties and witnesses, that district courts may consider in determining whether a transfer is appropriate:

(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 v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). No single factor is dispositive, and a district court has broad discretion to adjudicate motions for transfer on a case-by-case basis. Stewart Org, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (“A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors.”); Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 639 (9th Cir. 1988). The party seeking a change of venue bears ...

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