United States District Court, D. Arizona
ORDER
Douglas L. Rayes, United States District Judge.
Before
the Court is Defendants BCB Holdings, Incorporated
(“BCB”), Nicholas Domenico, and Frank
DeHoff's Motion to Transfer Venue to the United States
District Court for the District of Colorado (Doc. 25), which
is fully briefed. For the following reasons, the motion is
denied.[1]
I.
Background
Plaintiff
Spirit Master Funding X LLC (“Spirit Master”) as
landlord and BCB as tenant entered into a written lease for
certain property located in Denver, Colorado. The lease
contained a forum-selection provision that reads, in relevant
part:
For purposes of any action or proceeding arising out of this
Lease, the parties hereto expressly submit to the
jurisdiction of all federal and state courts located in the
City and County of Denver, State of Colorado. . . .
Furthermore, Tenant waives and agrees not to assert in any
such action, suit or proceeding that it is not personally
subject to the jurisdiction of such courts, that the action,
suit or proceeding is brought in an inconvenient forum or
that venue of the action, suit or proceeding is improper.
Nothing contained in this Section shall limit or restrict the
right of Landlord to commence any proceeding in the federal
or state courts located in the State of Arizona to the extent
Landlord deems such proceeding necessary or advisable to
exercise remedies available under this Lease. . . .
Domenico
and DeHoff executed a guaranty, under which they guaranteed
certain performance of BCB under the lease. The guaranty
includes the following “Governing Law” provision:
This Guaranty is delivered in the State of Arizona . . . .
For purposes of any action or proceeding involving this
Guaranty, Guarantor submits to the jurisdiction of all
federal and state courts located in the State of Arizona . .
. . Guarantor waives and agrees not to assert in any such
action, suit or proceeding that Guarantor is not personally
subject to the jurisdiction of such courts, that the action,
suit or proceeding is brought in an inconvenient forum or
that venue of the action, suit or proceeding is improper.
Spirit
Master alleges that Defendants are in breach of the lease and
guaranty by failing to make payments. Defendants admit in
their answer to the complaint that Plaintiff is entitled to
recover damages from BCB because of the alleged breach, and
Domenico and DeHoff admit the existence of the guaranty.
Defendants also raise as an affirmative defense Spirit
Master's alleged failure to mitigate its damages.
Defendants
have moved to transfer this matter to the District of
Colorado pursuant to 28 U.S.C. § 1404(a), arguing that
the factual issues in the case will involve the lease, the
property, and Denver-based mitigation efforts. Spirit
Master's response indicates that the only witnesses
likely to be called at trial are parties to the litigation or
expert witnesses.
II.
Legal Standard
The
court, for the convenience of the parties and witnesses, and
in the interests of justice, may transfer a civil action to
any district in which the case originally could have been
brought. 28 U.S.C. § 1404(a). In determining whether a
transfer of venue is appropriate under this section, the
court must make two findings: (1) the transferee court is one
in which the case could have been brought and (2) the
convenience of the parties and witnesses and the interests of
justice favor transfer. Hatch v. Reliance Ins. Co.,
758 F.2d 409, 414 (9th Cir. 1985). The movant bears the
burden of showing that a transfer is warranted. Commodity
Futures Trading Comm'n v. Savage, 611 F.2d 270, 279
(9th Cir. 1979).
III.
Discussion
The
parties agree that this case could have been brought in the
District of Colorado. They disagree over the impact of the
forum-selection provisions in the lease and guaranty, and
over whether the District of Colorado is a more convenient
forum.
When
determining whether the convenience of the parties and
witnesses favor a transfer, a court ordinarily ...