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Porter v. Chetal

United States District Court, D. Nevada

June 25, 2014

MARIAN K. PORTER, Plaintiff,


LARRY R. HICKS, District Judge.

Before the Court is Defendant Shyam K. Ch ("Chetal"), individually and d/b/a Advantage Real Estate Pro ("Advantage"); United Capital Investments, Inc., ("United"); and Smarttouch Systems, Inc.'s ("SSI") (collectively "Defendants") Motion for Change of Venue. Doc. #18.[1] Plaintiff Marian K. Porter ("Porter") filed an Opposition (Doc. #19), to which Defendants replied (Doc. #23).

I. Facts and Procedural History

This is a contract dispute arising out of Defendants' alleged failure to pay the maintenance fees owing and due on Porter's mining claims in Wyoming, thereby causing Porter to permanently and irrevocably lose her rights thereto. On December 2, 2013, Porter filed a Complaint against Defendants in this Court on the basis of diversity jurisdiction. See Doc. #1, ¶ 6; 28 U.S.C. § 1332. Porter alleges claims for breach of contract, tortious breach of contract, fraud, negligence, and breach of the implied covenant of good faith and fair dealing. See Doc. #1, ¶¶ 51-107. On April 23, 2014, Defendants filed a Motion for Change of Venue to the Northern District of California. Doc. #18.

II. Legal Standard

Defendants seek transfer of venue pursuant to 28 U.S.C. § 1404(a). Under § 1404(a), a court may, for the convenience of parties and witnesses and in the interest of justice, transfer any civil action to any other district where it might have been brought. The district court has broad discretion "to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness."[2] Stewart Org., Inc., v. Ricoh Corp., 487 U.S. 22, 23 (1988). A party seeking to transfer venue pursuant to § 1404 bears the burden of establishing:

(1) the proposed district is a proper venue where the case might have been brought; and (2) the proposed district is a "more appropriate forum for the action." See Operation: Heroes, Ltd. v. Proctor and Gamble Prods., Inc., 903 F.Supp.2d 1106, 1111 (D. Nev. 2012); Jones v. GNC Franchising, Inc., 211 F.3d 495, 499 (9th Cir. 2000). "When the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff's choice should be respected." In re Volkswagen of America, Inc., 545 F.3d 304, 315 (5th Cir. 2008).

In determining whether the transferee district would promote the convenience of parties and witnesses, and serve the interests of justice, district courts consider the following casespecific factors:

(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. Additionally, the presence of a forum selection clause is a "significant factor" in the court's § 1404(a) analysis.... [Finally, ] the relevant public policy of the forum state, if any, is at least as significant a factor in the § 1404(a) balancing.

Jones, 211 F.3d at 498-99 (citing Stewart, 487 U.S. at 29-33).

III. Discussion

Although it is undisputed that this action might have been brought in the Northern District of California, [3] the Court finds that Defendants have failed to establish that transfer of venue is warranted. An analysis of the Jones factors demonstrate that the Northern District of California would not be clearly more convenient than the District of Nevada.

1) Location Where Relevant Agreements Were Negotiated and Executed

The Court finds this factor indeterminate at this stage in the proceedings as the negotiations and execution of the contract were performed by the parties in their respective states. On several occasions Chetal, either individually or on behalf of one of the Defendant companies, faxed documents pertaining to the contract negotiations to Porter in Nevada. See Doc. #1, Ex. 1-3. Additionally, the contract arguably became effective when Porter accepted and returned Chetal's offer, which she received and executed in Nevada. See id., Ex. 2; Doc. #19, p. 5. While there is no indication that Defendants were ever physically present in Nevada, it also does not appear that ...

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