United States District Court, D. Nevada
the court is defendants Andrew Seeley, Richard Ooms and
Tiffany Seeley's motion to dismiss for improper venue or
transfer. (ECF No. 6). Plaintiff responded (ECF No. 12) and
defendants replied (ECF No. 14).
before the court is plaintiff's motion to remand. (ECF
No. 13). Defendants responded (ECF No. 16) and plaintiff
replied (ECF No. 17).
dispute arises out of a contract entered into on May 26,
2016. (ECF No. 2 at 6). According to the complaint,
defendants failed to make the full payments as agreed upon
under the contract. (Id. at 7). As a result,
plaintiff alleges that defendants owe him $79, 316.39.
(Id. at 8).
September 22, 2016, plaintiff filed a complaint for breach of
contract in Ninth Judicial District in and for the State of
Nevada. (ECF No. 2 at 6-9). On November 7, 2016, defendants
removed the action to this court pursuant to 28 U.S.C. §
1332(a). (ECF No. 2).
move to dismiss for improper venue pursuant to Federal Rule
of Civil Procedure 12(b)(3) or to transfer the case to the
Southern District of California pursuant to 28 U.S.C. §
1404. (ECF No. 6). Plaintiff moves to remand the action to
Douglas County, Nevada in accordance with the forum selection
clause set forth in the Private Investment Agreement. (ECF
No. 13). The court addresses each motion in turn.
Motion to Dismiss for Improper Venue
move the court to dismiss the action pursuant to Federal Rule
of Civil Procedure 12(b)(3) for improper venue. Venue of
removed actions is governed by 28 U.S.C. § 1441(a).
See Polizzi v. Cowles Magazines, Inc., 345 U.S. 663,
665-66 (1953) (holding that 28 U.S.C. § 1391 has no
application in removed actions). Section 1441(a) provides
that, when an action is removed from state court, venue is
automatically proper in the federal district court where the
state action was pending. 28 U.S.C. § 1441(a). There is
only one official federal judicial district in the state of
Nevada. Therefore, venue is proper in this court.
Defendants' motion to dismiss for improper venue is
Motion to Transfer
also request the court transfer the action to the Southern
District of California for the convenience of the parties and
witnesses. Section 1404 establishes that “[f]or 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).
determining whether transfer is appropriate in a particular
case, the court is required to weigh multiple factors.
Jones v. GNC Franchising, Inc., 211 F.3d
495, 498 (9th Cir. 2000). The court may consider the
(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
at 498-99. The presence of a forum selection clause is also a
“significant factor” in the court's §
1404(a) analysis. Id. A “defendant must make a
strong showing of inconvenience to warrant upsetting the
plaintiff's choice of forum.” Decker Coal Co.
v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.
1986) (citation omitted).
request the court to transfer venue of this case to the
Southern District of California. As an initial matter,
defendants assert that the matter may be properly brought in
the Southern District of California as all defendants are
California residents and live in San Diego. See 28
U.S.C. 1391(b)(1). In support of transfer, defendants state
that, other than plaintiff, all parties encumbered by the
Private Investment Agreement reside in California, travel to
Nevada would be a hardship on defendants, defendants may call
some witnesses who are residents in California, any documents
that relate to the operations of Getaway San Diego will be
located in California, and that nearly all operative facts
occurred in ...