United States District Court, D. Arizona
Honorable Cindy K. Jorgenson, United States District Judge.
before the Court is Defendant Blancey Siganoff's Motion
to Change Venue/Transfer Case to Phoenix Division. (Doc. 37).
Siganoff's Motion was joined by Defendants Repo
Specialists, LLC, Mario I. Cazares Burciaga, Express Auto
Group LLC, Javier Cazares Burciaga, and Socorro Arzate
(“Repo Defendants”). (Doc. 39). Defendant Ally
Financial filed a response in opposition. (Doc. 38).
Plaintiffs filed no response.
facts pertaining to the choice of venue in this case are
unusual. Plaintiffs filed their complaint in August 2018.
(Doc. 1). In the section of Plaintiffs' Complaint
entitled “Jurisdiction, ” Plaintiffs state:
“Venue lies in the Phoenix
Division of the District of Arizona as Plaintiffs' claims
arose from acts of the Defendants perpetrated therein.”
(Doc. 1, pg. 2) (emphasis added). Although the jurisdictional
statement claimed that venue lies in the Phoenix Division,
Plaintiffs filed their lawsuit in the Tucson Division of the
District of Arizona. Despite this seeming contradiction,
Defendants Siganoff and Ally Financial, Inc. admitted the
propriety of Plaintiffs' jurisdictional statement
pertaining to venue, whereas the Repo Defendants, all
represented by the same counsel, denied the statements
contained in the “Jurisdiction” section of
24, 2019, a scheduling conference was held and, for the first
time, the issue of improper venue was raised. (Doc. 35).
Following that scheduling conference, Siganoff filed a motion
for an intra-district transfer of this case from the Tucson
Division of the District of Arizona to the Phoenix Division.
(Doc. 37). Specifically, Siganoff's Motion
invokes 28 U.S.C. § 1404, which permits a venue transfer
“[f]or the convenience of parties and witnesses, [and]
in the interest of justice . . . to any other district or
division where it might have been brought or to any district
or division to which all parties have consented.”
“district court has broad discretion in deciding
whether to order a transfer.” Caldwell v. Palmetto
State Sav. Bank of S.C., 811 F.2d 916, 919 (5th Cir.
1987); see, e.g., Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 23 (1988) (28 U.S.C. § 1404 “is
intended to place discretion in the district courts to
adjudicate motions for transfer according to an
individualized, case-by-case consideration of convenience and
fairness”). Ordinarily, “[t]he moving party has
the burden to show that the existing forum is
inconvenient.” Texas E. Transmission Corp. v.
Marine Office-Appleton & Cox Corp., 579 F.2d 561,
567 (10th Cir. 1978). “In ruling on a motion to
transfer pursuant to § 1404(a), the Court must evaluate
three elements: (1) convenience of the parties; (2)
convenience of the witnesses; and (3) interests of
justice.” Safarian v. Maserati N. Am., Inc.,
559 F.Supp.2d 1068, 1071 (C.D. Cal. 2008). The Court will
address each element individually.
Convenience of the Parties
argue that venue in Phoenix is proper because “[a]ll
defendants are located in the Phoenix area (or outlying
cities). The only party located in Tucson are the
Plaintiffs.” (Doc. 37, pg. 3). Although it would
undoubtedly be more convenient for Defendants if the case
were transferred to the Phoenix Division, Defendants'
argument that a transfer would be more convenient for
Defendants is not persuasive since such a transfer would
simply shift the inconvenience onto the Plaintiffs, who
reside in Tucson, and for whom the Tucson Division is more
convenient. “Shifting inconvenience from one party to
another does not generally justify the intradistrict transfer
of a case.” Highland v. Anderson, No.
17-CV-362 (RHK/LIB), 2017 WL 7370061, at *3 (D. Minn. Oct. 2,
2017), report and recommendation adopted, No. CV 17-362
(RHK/LIB), 2017 WL 7370054 (D. Minn. Oct. 24, 2017).
Defendants argue in favor of an intra-district transfer
because “all counsel involved are also located in the
Phoenix area, ” (Doc. 37, pg. 3) and that “[a]ll
the parties' law firms have Phoenix locations.”
(Doc. 39, pg. 2). That counsel is located in the Phoenix area
is immaterial as the “[l]ocation of counsel is entitled
to little consideration.” Cheval Farm LLC v.
Chalon, No. CV-10-01327-PHX-ROS, 2011 WL 13047301, at *2
(D. Ariz. Jan. 19, 2011); see also In re Horseshoe
Entm't, 337 F.3d 429, 434 (5th Cir. 2003)
(“The factor of location of counsel is irrelevant and
improper for consideration in determining the question of
transfer of venue”) (internal quotation omitted).
well established that a plaintiff's choice of forum is
given substantial consideration. See Texas E.
Transmission Corp., 579 F.2d at 567
(“Plaintiff's choice is also given considerable
weight”); Safarian, 559 F.Supp.2d at 1071
(“A plaintiff's choice of forum is accorded
substantial weight in proceedings under 28 U.S.C. section
1404(a)”). Plaintiffs chose the Tucson Division to
bring their claim and the burden is on Defendants to
“make a strong showing of inconvenience to upset the
plaintiff's choice of forum.” Welenco, Inc. v.
Corbell, No. CIV. S-13-0287 KJM, 2014 WL 130526, at *5
(E.D. Cal. Jan. 14, 2014). The only argument advanced by
Defendants with respect to the convenience of the parties is
that a transfer of venue to the Phoenix Division will be
beneficial to the Defendants at the expense of the
Plaintiffs. This is not a sufficient justification.
Plaintiffs initial choice of forum is given substantial
deference and an argument that a transfer will solely benefit
the Defendants is not an appropriate basis for a transfer.
Convenience of Witnesses
than fully articulating how a transfer will facilitate the
convenience of possible witnesses, the Repo Defendants'
Motion merely states “[m]ost, if not all, of the
Defendants reside in Phoenix. Most of the witnesses in this
case also reside in Phoenix.” (Doc. 39, pg. 2).
Siganoff's motion fails to mention any possible impact an
intra-district transfer will have on witnesses. Courts have
routinely held that “[t]he convenience of witnesses is
often the most important factor in determining whether a
section 1404 transfer is appropriate.” Stribling v.
Picazo, No. 15-CV-03337-YGR, 2018 WL 620146, at *3 (N.D.
Cal. Jan. 30, 2018). See also, e.g., State St. Capital
Corp. v. Dente, 855 F.Supp. 192, 197 (S.D. Tex. 1994)
(“The relative convenience to the witnesses is often
recognized as the most important factor to be considered in
ruling on a motion under § 1404(a)”). While the
convenience to witnesses is the most important factor,
“the convenience of non-party witnesses is more
important than the convenience of the parties.”
Martin v. Glob. Tel*Link Corp., No. 15-CV-00449-YGR,
2015 WL 2124379, at *4 (N.D. Cal. May 6, 2015).
Court finds this factor to weigh against transfer.
Ordinarily, “if the transfer is for the convenience of
witnesses, defendant must name the witnesses it wishes to
call, the anticipated areas of their testimony and its
relevance, and the reasons why the present forum would
present a hardship to them.” Bohara v. Backus Hosp.
Med. Benefit Plan, 390 F.Supp.2d 957, 963 (C.D. Cal.
2005). Defendants have provided no detailed information, or
even any information, pertaining to witnesses and why the
Tucson Division would present a hardship to them outside of
an inference that the distance between Phoenix and Tucson
would be burdensome.
Interests of Justice
the convenience of witnesses is often the most important
factor in determining whether a section 1404 transfer is
proper, “[f]airness considerations may be decisive in
ruling on a transfer motion, even when convenience of
witnesses and parties points the other way.” Pratt
v. Rowland, 769 F.Supp. 1128, 1133 (N.D. Cal. 1991).
Here, a few significant considerations may weigh in favor of
transfer. As Siganoff's Motion emphasizes, the contract
between the parties was entered into in Phoenix and the
alleged violation of 49 U.S.C. § 32701, the Federal
Odometer Act, occurred in Phoenix. Furthermore,
Siganoff's cross-claims also allege acts that occurred in
the Phoenix area. However, despite those considerations,
ultimately, “a court must balance the preference
accorded plaintiffs choice of forum with the burden of
litigating in an inconvenient ...